Students sue to reverse breathalyzer-related suspensions

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Two Weymouth High School seniors who sued the school system over their breathalyzer-related suspensions after the homecoming dance say they are eager for their day in court, in a case that has drawn public attention to the use of the alcohol-detecting tests.

The girls insist they hadn’t been drinking and want their school records expunged and legal costs paid, according to their lawsuit filed in November 2012 in Norfolk Superior Court. Their nine-day suspension “under the guise of a so-called zero tolerance policy” violated the students’ due process and civil rights, the suit contends.

The Weymouth School Department denies any wrongdoing and won the first court skirmish, convincing a judge not to impose a temporary restraining order preventing punishment.

“The school district is entitled to a substantial deference in the imposition of discipline,” Judge Kenneth J. Fishman wrote in his Nov. 16 decision. No date has been set for a trial.

The lawsuit has focused attention on the use of breathalyzers in schools as a way to combat student drinking. The practice, however, is not well documented, according to Massachusetts Mothers Against Drunk Driving and the Massachusetts Association of Secondary School Administrators.

“I don’t know of any data of how prevalent it is, or whether it is increasing or decreasing,” said Richard L. Pearson, associate director of the administrators’ group.

Anecdotally, however, breathalyzer use in schools “is not all that common,” according to Mike Gilbert of the Massachusetts Association of School Committees. That’s because “obviously there are legal issues, to ensure that it is done fairly,” he said.

“Generally when somebody calls from a school district [asking about breathalyzers], we tell them to have a conversation with their legal counsel,” he added. But he said interest in breathalyzers is increasing. “Every time a 16- or 17-year-old student is injured or killed in a car accident involving alcohol – oftentimes, these kids are coming to or from a school activity.”

Locally, policies on using breathalyzers vary. Hingham High School has been administering the test to everyone attending its dances after a problem with intoxicated students at the 2006 homecoming dance, according to principal Paula Girouard McCann. She said there hasn’t been an incidence of alcohol use at dances since then. Although the numbers of students attending the events decreased, “it’s a practice we have no intention of discontinuing,” she said.

Westwood High School principal Sean Bevan also said breathalyzer tests have been “ a condition of entrance” to school dances for many years, and he knows of nobody testing positive for alcohol. “Kids know well in advance that this is what they will encounter when they walk in the door,” Bevan said.
“We’re hoping to deter, and it seems to work.”

Avon Middle High School also gives breathalyzer tests to all students before social events, said principal Sharon Hansen.

Walpole, Brockton, Hull, and Silver Lake Regional high schools are among the schools that have breathalyzers but use them sparingly — usually when they suspect a student has been drinking.

Officials at Randolph, Norwood, and Braintree high schools said they don’t use the devices. “We assess students at the door” of events, said Braintree High School headmaster James Lee, noting that both school staff and a police officer greet students.

“Generally, it’s effective. The general climate is that we are all watching and all aware, and if we see anything, we will respond,” he said.

According to documents filed at Superior Court, the Weymouth incident happened at the Nov. 3 Homecoming Dance at Weymouth High School. School officials pulled aside nine students, including Paige Lambert and “Jane Doe,” suspected of drinking, and gave them breathalyzer tests. Seven tested positive, including Lambert, who recorded a .038 percent alcohol level, and Doe, at .028.

The legal standard in Massachusetts for intoxication is 0.08 percent; anything over 0.0 indicates the presence of alcohol, according to Albert Elian of the state Office of Alcohol Testing. (While not commenting on the specific case, he said breathalyzer readings are reliable but depend on such factors as someone’s weight, gender, whether they’d eaten, and what they drank and when.)

The students were sent home and then suspended for 10 days, which was reduced to nine days after they attended an alcohol counseling class. Both Lambert and Doe say they didn’t drink any alcohol and blamed another student’s water bottle they’d sipped during the dance, which “tasted strange.”

Their lawsuit contends that being forced to take the breathalyzer test amounted to an unlawful “search and seizure,” and also questions the validity of the results. The suit also criticized the severity of the punishment for what it says was a first offense for both girls.

The Weymouth student handbook lists possible consequences for violating school rules, ranging from early dismissal, parental conferences, detention, suspension from one to 10 days, and expulsion.

“This is a case about seven students who each made a stupid mistake at a high school dance and were then compelled to pay the consequences,” the school district countered in its legal response.

Weymouth school officials “take their responsibilities as public educators very seriously,” attorney John Davis wrote. “They promulgated rules and regulations designed to keep Weymouth students safe. . . . The public interest demands that they should not be hamstrung in protecting Weymouth students.”